46 F. 860 | S.D.N.Y. | 1891
In the former decision of the above causes, the Express was held without fault, (44 Fed. Rep. 392,) and the tugs Starbuck and Charm, which had the Niagara in tow, were held to blame. It did not seem necessary at that time to determine whether the Niagara, which was in tow of those tugs, and came in collision with the Express, should also be held to blame; but, it appearing that there is no community of interest between the tugs and the Niagara, and that the value of the tugs is insufficient to pay the damage caused to the two vessels by the collision, it is necessary to determine the question whether the Niagara is also chargeable with fault; for, if she is blamable as between her and the Express, she is liable to the Express, and cannot diminish to the latter’s prejudice the fund derivable from the stipulation given by the tugs.
Most of the facts are stated in the former opinion. The navigation of the Niagara was held to be in fault (1) for unnecessarily going to the left-hand side of the East river channel, near Corlear’s Hook, and continuing her heading towards the left, though bound for the New York shore; (2) not signaling or answering signals in time; and (3) for turning shortly before collision to the right, across the bows of the Express. For these faults, save the want of signals, I think the Niagara was at least jointly to blame with the tugs. As respects the giving of signals, it was held in the case of The Einar, 45 Fed. Rep. 497, 500, that on the failure of the tug to give signals, it was the duty of the tow to direct them to be given; and in The City of Alexandria, 31 Fed. Rep. 427, it was held the duty of the tow having whistles to sound them. By the first fault the Express was embarrassed as to the Niagara’s intentions; by the last, after the danger was over if the Niagara had kept her course, collision became unavoidable. In both these faults the officers of the Niagara were active participants. The final order, “hard a-port,” which precipitated collision, was given by the master alone, and the previous slow turning of the Niagara in straightening down river arose, at least in part, through not hard a-porting long before; and as to that the master had and exercised such control as he saw fit.
This case has no resemblance to that of Sturgis v. Boyer, 24 How. 110, because there the master and crew were not on board, and had no participation in the faulty navigation. It was the same as to want of participation in the fault in the case of The John Fraser, 21 How. 184. In the former case Clifford, J., says expressly that—
“Both tug and tow are jointly liable when those in charge of the respective vessels jointly participate in their control and management, and the master or crew of both are deficient in skill, omit to take due care, or are guilty of negligence in their navigation.” The Mabey, 14 Wall. 204, 211; The Maria Martin, 12 Wall. 44; The Virginia Ehrman, 97 U. S. 309, 313.
If any doubt could exist as to what was meant in Sturgis v. Boyer, by “jointly participating in the control and management,” it would seem to
Stronger even than the facts assumed by Judge Betts are the facts here, which show a joint participation in the navigation of the tow; and, if this were not to be held such a case, I hardly perceive how any case ever likely to arise could be construed as one of joint navigation; for the officers and crew of the Niagara were not only onboard, but actively participating in her navigation. Her master was on the bridge, her quartermaster at the wheel, receiving his orders; and the very order that jjrecipitated collision came from her master only. The pilot of the Charm was by his side, concurring in all his acts. It is plain, moreover, that the active co-operation of the officers and crew of the Niagara ivas necessary to the navigation of the ship, and that their help was expected and counted on by the tugs in her navigation. Besides those mentioned, others of the crew were stationed forward, as the master says, for any necessary emergencies. Without them, the ship would have been unseaworthy, for want of suitable equipment for safe navigation. The Galatea, 92 U. S. 439. It is manifest that the tugs neither bad nor exercised exclusive management or control. This is plainly not a case like that of the towage of canal-boats, in which the tugs take, and are expected to take, the whole management of the tow into-their own hands; but one of joint participation and direction. The captain, indeed, states that he considered the ship to be under the direction of the tugs and of the pilot of the Charm, who was on the bridge with him; but such an opinion, given after collision, for the purpose of exonerating himself and
Without commenting, therefore, upon the arguments submitted in regard to what was said in the case of The Doris Eckhoff, 32 Fed. Rep. 555, and without considering to what extent the principle on which Sturgis v. Boyer was decided, as respects the remedy against the ship in rem, has been modified by subsequent cases in the supreme court, or supplemented by many of its justices, including Mr. Justice Clifford himself; to what extent its application to cases like the present would work injustice by absolving from liability the vessel that inflicts the injury; or to what extent it is incompatible with the general design of the act of 1851, (Rev. St. §§ 4283-4286,) which, since that case was decided, has been" developed and expounded by the supreme court as an adoption, in a large degree, of the general maritime law of Europe, which, in the navigation of chartered ships by the owner’s consent, though the owner does not stand in the relation of principal, or incur any personal liability, nev
NOTE.
The following is the opinion of Betts, J., in the case of Sturgis v. Boyer, above referred to, (The Wisconsin and The Hector,) in the district court.
After reviewing the facts, and finding the libelant’s lighter not in fault, the opinion proceeds, (volume 23, notes of Betts, J., 127:)
“Betts, J. The second inquiry demands a consideration of the proceedings by the ship and steam-boat, and whether they are chargeable with culpable acts of omission or commission of a character to render them jointly responsible to the libelant for the injuries sustained from them. In my opinion, the balance of testimony proves that the tow was approaching the lighter further out in the river from the New York piers than the lighter, she and the tow aiming to come to nearly at the same point. It was mid-day, and there was no impediment in the river to a clear view of the position and course of the lighter by those navigating the tow, and warning was given the tow from the lighter time enough to enable the tow to have stopped her way, or diverged from it sufficiently to secure the safety of the other vessel. The differing opinions of the witnesses as to the motion of the tide at the time of collision, and also as to the headway of the respective vessels, seem to be controlled by the fact that the barrels of flour thrown into the river by the upsetting of the lighter floated down the stream. Upon that condition of things, it is manifest that the exercise of reasonable diligence and caution on the part of the managers of the tow, when they ought to have been aware they could not prudently attempt to make her berth by going ahead of the lighter, throws upon the tow the responsibility for all damages inflicted upon the lighter by reason of continuing that movement. The injured party, in case of collision, has, as a general principle, a right to hold the vessel which is the direct and immediate cause of the wrong answerable to him for it, (The Neptune, 1 Dod. 467,) and this without .regard to the question of the personal participation of the owner of a colliding vessel in the culpable acts.. When she is in motion in the pursuit of her lawful calling, she carries with her the responsibility of her owner for the acts of his agents, to whom she is intrusted, to the same extent as if she was under his personal direction. Abb. Shipp, pt. 3, c. 1. Nor does it matter whether the propulsion is by the agency of sails or sweeps, or that of steam-tugs fastened to her, and used to the same end, because the steam-power thus applied may be justly regarded only as a substitute for other physical means of navigation. Reeves v. The Constitution, 1 Gilp. 579; The Express, Olcott, 258. A ship under towage by a steamer lashed to her side is chargeable for damages wrongly occasioned another vessel by striking while under way against her. The Carolus, 2 Curt. 69. The answers filed, respectively, by the owner of the ship and the tug are in direct conflict upon the question whether the navigation of the tow was under the control of the officers of the one vessel or the other; it being averred for the ship that she was exclusively in the hands and under the command of the officers of the tug at the time of collision, and asserted on the part of the túg, with equal positiveness.
“This court decided in the case of The Express, Olcott, 258, that the tow, being separate from the tug, and coming in contact with another vessel by her own fanlt, was liable for the damages thus inflicted in a suit against her alone; and, although the decree was reversed on appeal upon a new state of facts proved in the circuit court fixing the fault wholly upon the tug, (1 Blatchf. 365,) yet that doctrine was explicitly adopted by Judge Nelson, who says: ‘In all such cases, at least, there exists a common obligation by the tug and tow to make every reasonable effort to avoid the danger and a common responsibility in case of neglect. ’ In that case the appellate court corrected the decision below, because the liability was imposed by its judgment on the tow, when the culpable acts were committed by the tug solely, without any faulty concurrence on the part of the tow, upon the declared principle that both vessels were under a common obligation in their respective positions to employ every reasonable effort to avoid damage, and under a common responsibility for it in case of faulty omission to do so. 1 Blatchf. 367. The contingency anticipated in that decision arises in this case. The ship and the tug were united together, and were moved as one body. The ship’s company had sole charge of her helm and sails, and the master of the tug gave directions from her deck concurrently for her navigation and that of the tug, and the helm of the ship was employed in a common navigation of the two vessels. Neither of the two, as they were connected and conducted, had any movement or action separate from the other, but employed concurrently the means at their command to a common end; and it cannot be said, therefore, for the ship, if the fact be of any moment in this case, that she did not participate with the tug in any voluntary action producing a collision. The admiralty court In Lower Canada (The John Counter, 18 Law Reports, L. C. 553,) held the steam-tug exclusively responsible for a collision of her tow with another vessel when the low was hauling by a line clear of the tug, and the damage was caused by the sole fault of the tug, although she did not come in contact with the injured vessel. In The Carolus, 2 Curt. 69, Judge Ccrtis adjudged the colliding ship, propelled by a tug, answerable for a collision caused by her, when the tug was not joined in the suit, without raising, a question as to the liability of the ship.
“In the circuit court of Pennsylvania a distinction is taken which I do not meet with in any other adjudication between the responsibilities for collision when small steam-tugs are employed to tow large vessels, and large tugs are engaged in towing small crafty barges, etc. In the first class of cases, when injuries arose to other vessels by collision with a large tow through the misfeasance or culpable inattention of the tug, the consequences are made chargeable exclusively upon the ship, the tug being regarded as her servant or agent, acting under her áuthority; and that no suit for collision can he sustained against the tug for damages so accruing from collision by her tow. Smith v. The Creole, 2 Wall. Jr., 485, 511, 512. The Sampson, 3 Amer. Law Reg. 337. The entire navigation and movements of the two vessels is held to be at the risk of the ship. The principle of these rulings would apply to the present case, and would fasten on the ship the liability for damages inflicted upon the lighter. I am impressed with the persuasion that the true doctrine subjects both tug and tow to responsibility to another vessel for injuries inflicted upon it by the joint action of the two by means of their common fault. I am in no way convinced that the marine law dispenses either from liability to others for their mutual acts of misfeasance or omission upon navigable waters, as upon that area it is most important to the safe transportation of persons and property that every vessel propelling herself or another by motive powers within herself, or Invoking or using such motive powers supplied by another, should be accountable for the consequences of the injurious misuse of such locomotion to the same extent as When she is acting separately and alone. It inures to the general security that the risk of that connection with such extraneous agency shall be imposed upon the parties so employing it, and that those suffering from its use should be entitled to indemnity therefrom against all the actoi’s concerned in the wrong.
“A case decided in this court in June term, 1855, by Judge Ingebsoll, is cited as establishing a different ruling, and exonerating the tug, and imposing the loss upon the party in tow on her side, when a collision was caused in their movements. I have obtained a clearer statement of that case from the files of the court, and find that the question mooted in this case could not have appropriately arisen in that. The owners of a lake boat in tow along-side of the tug (the Catherine) was met and run against on the East river by another small boat or barge in tow along-side a tug, (the Birkback,}
